Analysis: In any scandal, lying to Congress is tough to prove

WASHINGTON, D.C. (Reuters) - When embattled Internal Revenue Service official Lois Lerner was called before a congressional committee Wednesday, she declared that she had done nothing wrong - but said she did not intend to testify. Her defiance only turned up the heat from Republicans who have threatened to take her to court for misleading Congress.

Former U.S. Internal Revenue Service Commissioner Douglas Shulman (L-R), IRS Director of Exempt Organizations Lois Lerner and U.S. Deputy Treasury Secretary Neal Wolin take their seats to testify before a House Oversight and Government Reform Committee hearing on targeting of political groups seeking tax-exempt status from by the IRS, on Capitol Hill in Washington, May 22, 2013. REUTERS/Jonathan Ernst

Yet whatever political problems Lerner may have escalated for the Obama administration in the scandal over IRS scrutiny of Tea Party and other conservative groups, history suggests neither she nor any other IRS official is likely to face criminal charges related to congressional testimony.

Such charges are rarely filed, and convictions are even rarer. The most high-profile recent case in point is the prosecution of Major League Baseball pitching great Roger Clemens, who was acquitted by a jury in 2012 on charges he lied to Congress when he denied using performance-enhancing drugs.

“Almost no one is prosecuted for lying to Congress,” lawyer P.J. Meitl asserted in a 2007 Quinnipiac Law Review article. Meitl, who wrote the article while in private practice, is now an assistant U.S. attorney in Dallas. He found only six people who had been convicted of perjury or related charges in relation to Congress, going back to the 1940s.

Two of those cases arose from Watergate, one against President Richard Nixon’s attorney general, John Mitchell, and the other against H.R. Haldeman, Nixon’s chief of staff. Both men were found guilty of perjury before a Senate committee.

Unlike in a typical criminal probe, lawyers say that in a politically charged congressional setting - often involving many exchanges among officials, their staff and witnesses - it can be difficult to prove a key element in any perjury prosecution: that the person knowingly and willfully deceived.

For Lerner and some other officials, the legal cloud darkened when Attorney General Eric Holder said last week that the Justice Department would investigate possible wrongdoing relating to reports that the IRS subjected conservative groups to more scrutiny than other groups seeking tax-exempt status. Holder said the department would be looking at charges relating to the denial of civil rights to members of conservative groups, IRS rules for U.S. government employees and the Hatch Act, which bans civil servants from certain partisan political activity.

In a familiar Washington story line, legal questions have arisen not only about any possible core misconduct but also about a potential cover-up or attempt to mislead Congress about who knew what, when. Any false statements made to Congress could fit into this cover-up story line and would leave officials or former officials vulnerable to prosecution.

Wednesday’s hearing was chaired by California Republican Darrell Issa, who runs the House Oversight and Government Reform Committee. Prior to the hearing, Issa accused Lerner of providing “false or misleading” information to Congress last year when she testified about the IRS’s treatment of conservative groups seeking tax-exempt status.

He said she could face criminal liability under Section 1001 of Title 18 of the U.S. Code, which prohibits an individual from “knowingly and willfully” making materially false statements to Congress.

Other committee members suggested during the hearing Wednesday that additional officials, including former IRS Commissioner Douglas Shulman and outgoing acting IRS chief Steven Miller, could also face charges.

Two other statutes intended to ensure truthful responses to Congress could also come into play. Section 1621 forbids perjury, and Section 1505 prohibits the obstruction of justice. Lawyers caution, however, that all three provisions carry high standards of proof and are not often successfully enforced.

FIFTH AMENDMENT QUESTION

At Wednesday’s hearing, Lerner refused to answer any questions, asserting her Fifth Amendment right against self-incrimination. Her lawyer, William Taylor, told Reuters afterward that the implication that she already may have committed a crime left Lerner little choice about whether to testify.

“That committee has already made up its mind,” Taylor said. “Why should she go up there and confront people who have already decided she has done something wrong?”

Yet the way in which Lerner asserted her Fifth Amendment right sparked new controversy. While she told the committee she would not testify, she nonetheless read a statement that included an assertion that, “I have not done anything wrong. I have not broken any laws. I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee.”

That prompted some Republicans to claim that she was essentially waiving the right not to answer questions, and Issa said he would consider recalling Lerner to testify because of this possibility.

Taylor disputes any notion that Lerner jeopardized her Fifth Amendment right against self-incrimination. “She absolutely did not waive her Fifth Amendment rights,” said Taylor, a prominent criminal defense lawyer who in 2011 successfully defended former International Monetary Fund chief Dominique Strauss-Kahn on sexual assault charges.

Law professors say there is no clear answer as to whether Lerner may have waived her Fifth Amendment privilege by making the statement. Doing so in court testimony likely would be seen as waiving the right against self-incrimination, they said, but the rules are looser for congressional testimony and there is no definitive court ruling on the point.

Issa said emerging information conflicts with several assertions Lerner made to the committee last year, and in a letter last week suggested that Lerner could be criminally liable.

These include, from 2012, a February briefing when committee staff asked whether criteria for evaluating tax-exempt applications had changed and Lerner said it had not; an April phone call when Issa said Lerner told committee staff that the information the IRS requested was not out of the ordinary; an April letter saying that IRS letters to certain organizations were “in the ordinary course of the application process,” and in a May letter where Issa said her responses related to donor requests were misleading.

“Therefore, it appears you provided false or misleading information on four separate occasions last years in response to the Committee’s oversight of IRS’s treatment of conservative groups,” Issa wrote in a letter to Lerner on May 14, 2013.

Republicans have also said that now-deputy IRS Commissioner Miller and former IRS Commissioner Shulman misled them in communications and testimony. Even Democrats at Wednesday’s hearing disputed Shulman’s veracity when he testified to Congress in March 2012 to the House Ways and Means Committee that there was “absolutely no targeting” of Tea Party groups.

But there’s a long way from Congress asserting that somebody misled them to making a criminal case.

If Issa and other House members believe they have a perjury or obstruction case, they would turn their findings over to the Department of Justice for possible prosecution. A key consideration would be whether prosecutors could show that the statements were actually false, material and made with the required knowledge and willfulness to deceive.

Charges arising from responses to Congress can have a different fate from charges arising from statements made directly to investigators in the usual criminal probe, such as occurred in the celebrated cases of Martha Stewart and Lewis “Scooter” Libby. In 2004, Stewart was found guilty of making false statements to federal investigators related to her sale of stock in a biotech company. Libby, the former chief of staff to Vice President Dick Cheney, was found guilty in 2007 of lying and obstruction of justice related to his testimony to a grand jury investigating who blew the cover of CIA officer Valerie Plame.

Margaret Krawiec, a lawyer in the Washington, D.C., office of law firm Skadden, Arps, Slate, Meagher & Flom who previously worked in the Department of Justice, said typical criminal investigations inherently have a focus on potential criminal conduct. For members of Congress, in contrast, the original questioning “is usually driven by a legislative or political effort.”

That creates a different dynamic. “At the end of the day, the question is: Was (the testimony) egregious to the level that they should refer their findings to the Department of Justice,” Krawiec said.

She added that it is especially difficult to make a case against an evasive, rather than outright deceptive, witness. “It’s one thing to dodge a question,” she said. “It’s another to intentionally mislead.”